Judicial precedent: Main ideas

The hierarchy of the courts

In order to make the system of precedent work there is a hierarchy of courts and decisions of judges in the higher courts have to be followed by judges in the lower courts. This is because there are more experienced judges hearing appeals in the higher courts.

In the civil court system:

o Decisions of the Supreme Court bind all lower courts, but it is not bound by other courts or its own previous decisions;

o Decisions of the Court of Appeal bind the lower courts but it is bound (has to follow) decisions of the Supreme Court. It can depart from its own previous decisions in limited cases;

o The High Court has to follow decisions of the Supreme Court and Court of Appeal and its decisions will bind lower courts;

o County Court decisions are not reported and will not be binding of any other court but it has to follow decisions of all higher courts

Court heirarchy essays

Law reports

In order for judges and lawyers to be aware of decisions that have to be followed, most judgements of the higher courts are written into formal law reports. These reported decisions can then be quoted in later cases.

In civil cases a judge, after listening to the legal arguments, will make a decision. This will include a finding of fact, reviewing the relevant legal issues and then applying the legal issues to the facts of the case to reach a judgement. It is the review and application of the legal issues that will be of interest to lawyers as it will contain the ratio decidendi (legal reason) of the decision which has to be followed in later cases.

Judgements are written by specialist qualified barristers and are authorised by the judge. They can then be published in series such as The Law Reports, the Weekly Law Reports and the All England Law Reports and used in court. They can be published in newspapers such as The Times.

Law reports essays

Ratio decidendi and obiter dicta

In civil cases a judge, after listening to the legal arguments, will make a decision. This will include a finding of fact, reviewing the relevant legal issues and then applying the legal issues to the facts of the case to reach a judgement. It is the review and application of the legal issues that will be of interest to lawyers as it will contain the ratio decidendi (legal reason) of the decision which has to be followed in later cases. The judgement will not always make clear what the ratio of a decision is; it will be for lawyers and judges in later cases to interpret the judgement. When judges in higher courts set a ratio, this will have to be followed in later cases.

Anything in the judgement that is speculative or forms the judge’s observations is the obiter dicta (other things said by the way). This may be persuasive in later cases and will not be binding precedent.

Ratio decidendi and obiter dicta essays

The powers of the appeal courts to avoid precedent

Until 1966 the Supreme Court (formerly the House of Lords) was bound to follow its own previous decisions. This could mean that the law became rigid and was unable to develop. The Lord Chancellor introduced a Practice Statement in 1966 which allowed the court to depart from a previous precedent ‘when it was right to do so’. It was recognised that this would not happen too often for reasons of consistency. This power only applies to the Supreme Court.

The Court of Appeal were given power by Young v Bristol Aeroplane to avoid one of their own precedents when

o There are two conflicting precedent, it must decide which to follow and which to reject.

o If a previous decision has been overruled by the Supreme Court.

o If a previous decision was given per incuriam (by mistake).

The criminal division are given greater flexibility to avoid precedent because a person’s freedom may be at stake.